Canada: Making Sense Of Scents In The Workplace

Prior to the mid 1990's, the issue of scents in the
workplace was virtually non-existent. By 2000, so called
"Halifax Hysteria" erupted with the introduction of local
by-laws prohibiting perfume in many public places. In April 2000,
The Globe and Mail published this
article on the issue saying:

"The Halifax scent crackdown has drawn notice not only in
the Canadian Press but in The New York Times ("Canada Sniffs
and Dislikes the Smell"), The Wall Street Journal ("A
City Smells Perfume and Holds Its Nose") and Glamour magazine.
The right-wing American Spectator has just run a piece by
professional skunk-science debunker Michael Fumento. Dubbing the
scent ban the "Halifax holy war," Fumento dismissed the
entire North American anti-scent lobby, declaring that
"nowhere is it worse than in ocean-fresh Halifax."

The issue continues to arise more than ten years later at human
rights tribunals, workers' compensation claims and grievance
arbitrations. Just recently, in the Ontario Human Rights Tribunal
decision of Kovios and Inteleservices Canada Inc.,the result was
that there was no discrimination. However, the Tribunal only
reached that conclusion after conducting a full hearing at
substantial cost (unrecoverable) by the employer to defend. The
following is our review of that case followed by tips on dealing
with scents at the workplace.

The facts

Inteleservices operates a call center comprising two shifts and
approximately 200 agents. As per industry standard, the workplace
consisted of a large open space with rows of cubicles each with
four foot walls. When interviewed for the job in January 2010, the
applicant told the recruiter she had scent sensitivity and asked if
this would be a problem. She was told that although there was a
fragrance-free policy, with over 200 people working in the same
area it would not be possible to rule out any exposure.

As part of its orientation training attended by the applicant
and other new hires, a trainer reviewed Inteleservices'
policies and procedures, including the fragrance-free policy. The
applicant claimed that she immediately noticed that another member
of the orientation group was wearing perfume. The applicant began
to develop a migraine-type headache, a symptom of her sensitivity.
She did not say anything to the individual wearing the perfume or
the trainer until the end of the day when she told the trainer that
"someone" was wearing a fragrance and this was a problem
for her.

The applicant returned for the second day of training in the
same room the next day. The applicant testified that the perfume
was present again but she did not say anything until the break. At
that time, she told the trainer that she might have to leave and
identified the individual wearing the perfume. The trainer provided
a fan thinking it might solve the issue but it did not.

The third day of training took place in the same room and the
applicant said that she did not notice any fragrance in the small
room. The group then moved to a larger training room with better
ventilation – a move allegedly made by Inteleservices to
accommodate the applicant. Unfortunately, the applicant encountered
a perfume smell in the large room and she complained to the trainer
saying she didn't think she could continue. The trainer
suggested that they leave the training group and the applicant
could finish her training by shadowing a worker on the call centre
floor. The applicant then claimed that individual she was shadowing
was wearing perfume and she believed that further exposure would
only make her feel worse. After 10 minutes, she left the
workstation and told the manager that she had to leave work. The
applicant testified that the manager had no suggestions on how to
accommodate her and so she left the workplace.

The following day the applicant called Inteleservices locally
and its head office in the United States to complain about her
experience. Not satisfied with the results of those phone calls,
she eventually contacted the Human Rights Commission. In a
nutshell, her complaint was that Inteleservices did not enforce its
scent-free policy.

What the tribunal said

By now, you're probably thinking that something's
missing and you're right. No medical information. The entire
complaint failed as a result of the applicant not taking steps to
follow her human rights obligation. Here's what the vice-chair
of the Tribunal said:

"[the human resources manager] should perhaps have picked
up on the applicant's statement that she had been unable to
continue working in the call centre and the applicant's
suggestion that the reason for this was that the respondent's
fragrance-free policy was not being enforced. However, in all of
the circumstances of this case, I find that [the human resources
manager's] failure to clarify the situation does not mean that
the respondent discriminated against the applicant by failing to
accommodate. In particular, whether the conversation between the
applicant and [the human resources manager] occurred as the
applicant was leaving the workplace or a few days later, the
applicant did not explain what accommodation she was seeking, apart
from enforcement of the fragrance-free policy. In the circumstances
of this case, it appears to me that from the outset, the applicant
had a positive obligation to accurately identify to the respondent
what her accommodation needs were and to clearly explain to the
respondent why the solutions that had been attempted were not
adequate."

What this means for you

The following are top tips gathered from this case and others on
dealing with this issue at the workplace.

If you have a policy, implement it, train on it and enforce
it.

If you have a scent-free policy make sure you implement it and
take steps to enforce it – set forth all stakeholder
responsibilities including the affected employee's obligation
to bring forward specific and individual concerns.

Request clear and unequivocal objective medical evidence
when safe accommodation is an issue.

Employers are entitled to clear and unequivocal objective medical
evidence to support an individual's safe return to work and
accommodation.

Take the time necessary to explore accommodation especially
when there is serious risk of harm.

The accommodation process sometimes takes a significant amount of
time and particularly may do so when an employee's safety or
risk of re-injury is at stake.

Know the extent of accommodation required based on the
individual's medical information and the workplace.

The employer's duty to accommodate, where there is clear and
unequivocal objective medical evidence that it is safe for the
employee to return to work may include:

Staff training;

Working with the health and safety committees or
representatives and others to identify areas for improvement in air
quality and air flow;

Examining the possibility of air filtration; and

Where warranted, exploring telecommuting.

Sometimes accommodation may not be possible.

The employer's duty to accommodate ends where there is no
clear and unequivocal medical evidence that it is safe for the
employee to return to work (i.e., there can be no reasonable level
of sureness that the employer can provide a safe environment).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Jackie VanDerMeulen is the author of the articled titled, "Once bitten, twice shy: greater scrutiny ahead for employees misclassified as contractors" which appears in the International Law Office Newsletter.

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